Best Practices for Legal Education

Let’s face it, the role that technology can play in the practice of law is becoming more evident – with predictive coding, eDiscovery, and companies like LexMachina that use legal analytics to, among other things, predict the outcome of patent litigation.  But many in the legal academy still cannot conceive of how technology can change legal education.  If you are in that camp or know others who are, let me suggest that we do not dismiss the potential for change in legal education without knowing more about the emerging field of edtech and the forces behind it.  Want to learn more?  Here are ten things you can do this year that might change your thinking about the role of technology in the future of legal education.  The suggestions come from my article, which has other suggestions as well.

1.  Catch up on some important reading.  Read David Thomson, Law School 2.0: Legal Education for the Digital Age (2009).  Also, read the work of Bill Henderson, including A Blueprint for Change, 40 Pepperdine L. Rev. 461 (2013) and Andrew P. Morriss & William D. Henderson, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, 83 Indiana L. J. 791 (2008). Read David Barnhizer’s article, Redesigning the American Law School, 2010 Mich. St. L. Rev. 249 (2010). 

2.  Read, too, assessments about how technology has impacted and will continue to impact higher education generally, works such as Disrupting College: How Disruptive Innovation Can Deliver Quality and Affordability to Postsecondary Education, and The Department of Education’s Meta-Analysis and Review of Online Learning Studies. 

3.  Learn about the millennial generation who are “born digital” and how their more networked and connected lives affect the way they approach learning.  A great book on this topic is by John Palfrey and Urs Gasser of Harvard Law’s Beckman Center on Internet and Society, Born Digital: Understanding the First Generation of Digital Natives (2008).  Think about the implications of the fact that between 2000 and 2002, the largest group of first time internet users were between two and five years old, placing the oldest members of this group in college now – and in law school soon.  Begin to understand how the emerging “participatory culture” is changing what one needs to learn to be fully prepared to function in the twenty-first century.  You can do this by reading Henry Jenkins, Confronting the Challenges of Participatory Culture: Media Education for the 21st Century (MacArthur Foundation). 

4.  Begin to explore the potential for law schools to employ teaching methods that use technology to a greatly enhanced degree.  For example, read about flipping the classroom, a teaching methodology that blends online lectures (which students view at their own pace as homework) with in-class instruction, as it is used in K-12 education, Jonathan Bergmann & Aaron Sams, Flip Your Classroom: Reach Every Student in Every Class Every Day (ISTE/ASCD, 2012), or watch these videos on flipped learning in legal education.  By migrating lectures to the web, flipped learning can free face-to-face classtime for active learning, including Socratic dialogues, drafting exercises, simulations and role plays.  

5.  Investigate innovations in adaptive learning, a technique using computer software first to assess what a student knows and then to adapt the content taught to the knowledge level of the student, thus providing a more personalized learning experience for each individual.  Computer-based adaptive learning is already being used by the Kaplan test preparation company for college students planning to take the LSAT and GMAT; by Khan Academy for younger students; and by many companies, such as Knewton, for a wide range of users.  

6.  Consider the impact that gaming can have on education.  Follow the work of Jeannette Eicks (Vermont) and Stephanie Kimbro (Stanford), both of whom are working on projects that involve gaming and law.  Read James Gee, What Video Games Have to Teach Us About Learning and Literacy (2003); James Gee, Good Video Games and Good Learning, at http://dmlcentral.net/sites/dmlcentral/files/resource_files/GoodVideoGamesLearning.pdf.  Educational games are available for a variety of topics, including civics, see http://www.icivics.org/ (a game-based website started for former Supreme Court Justice, Sandra Day O’Connor); climate change, see http://www.bbc.co.uk/sn/hottopics/climatechange/climate_challenge/; national conflicts, see http://www.peacemakergame.com/game.php; and even algebra, see http://www.dragonboxapp.com.

7.  Monitor the impact that recent decisions by law schools to develop online programs for non-JD degrees has on programs at other schools, such as the decision by graduate tax law programs at, among others, Alabama, Georgetown, NYU, Villanova, and Boston University to offer their programs online. Read Distance Learning in Legal Education:  A Summary of Delivery Models, Regulatory issues and Recommended Practices. Attend a meeting of the Distance Learning in Legal Education Working Group, organized by Vermont Law School professors Rebecca Purdom and Oliver Goodenough.  The group meets three times a year, once in the fall (which is in a few weeks at William Mitchell School of Law), once during the AALS Annual Meeting, and a third time in the spring.  

8.  Monitor the effectiveness and reaction of law graduates who take online bar preparation courses such as Themis. 

9.  Explore some of the new apps being developed for iPads and Androids to teach legal concepts.  Law Stack is an Apple app for legal research loaded with various federal statutes.  Law School Dojo, by Stanford Law’s Margaret Hagan, is an app with quizzes on legal concepts for a range of subject matters, including contracts, torts, civil procedure and international law.

10.  Register for and attend the 2015 AALS Clinical Conference, May 4-7 in beautiful Rancho Mirage, CA.  The theme of the conference is the “New Normal.” One of the three tracks for the conference is devoted to the future in the “new normal,” both for the practice of law and for legal education. As to law practice, we hope to address how professors can understand the rapid and profound technological change that could well remake law practice and how those changes can advance our work for social justice. We want to explore how changes in service delivery and structure of law practices can and should impact our teaching. And we hope to address how professors can better use technological advances and insights from learning sciences in their teaching. 

The internet, the driver of all the changes and developments noted above, is a technology and a tool that, for the reach and extent of its often disruptive and its often liberating effects, can be compared only with the printing press.  When writing of Gutenberg’s invention, Elizabeth Eisenstein, a careful and meticulous historian of immense reputation, wrote (favorably quoting Renaissance scholar Myron Gilmore) in her two-volume magnum opus, The Printing Press as an Agent of Change, that “’[i]t opened new horizons in education and in the communication of ideas. Its effects were sooner or later felt in every department of human activity.’” As I explain in my recent article, I strongly believe that “[s]o too it is, or sooner or later shall be, with the internet.”

Are there things I am missing?  Add them in the comments below.

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The Bar Exam is upcoming. And with it comes heightened stress and potential for students, but also an odd chance for diverging interests between a small number of students and their law schools.

Bar exam homonyms: high stakes; gateway, leveler, stressor, useless unnecessary burden after three years of school, fee generator, standardizing, and proficiency. I’m sure “bar exam” conjures up many more thoughts and meanings for others. For law students, the impact of this exam is wide-ranging. Most graduates spend months of intensive study preparing for the bar exam. They incur additional debt for these review courses; they devote months of their lives to study intensively for the exam. Exam passage marks the entree into our profession with all of its benefits and burdens. Exam passage allows our graduates to practice law and makes more likely their getting and keeping a job sooner rather than later.

While for individual students, we provide encouragement, cajoling, and hope for exam success, their exam success has an additional impact on us. For law schools, the bar exam is a factor in accreditation and in reputation. The ABA accreditation standards require a law school to meet a bar pass requirement that can be done in one of two ways: “either by showing that 75 percent of its graduates who took the bar exam in at least three of the previous five years passed or by showing that its graduates’ first-time bar pass rate was no more than 15 points below the average bar pass rate for ABA-approved schools in states where its graduates took the bar.” The ABA, this spring, did not follow through on a proposal that would have increased the passage percent rate requirement from 75 to 80 percent. This connection to accreditation, while arguably standardizing law schools, can recast student success on the bar exam from an individual achievement and triumph to an institutional success or failure.

Therein lies a challenge for a small number of students – reconciling the individual student’s path toward bar exam success with institutional markers of success. Where one student may benefit from repeated attempts at taking the exam, gaining familiarity and comfort and so easing stress that inhibits success, the student’s school must count that student’s learning process as a “failure” against institutional success and reputation. To foster institutional reputation, encouraging some students to wait to take the bar exam seems a good path; on the other hand, for the student who would benefit from the exposure, supporting the student’s decision to take and re-take may be the better path for the student even if not for the institution. A delicate balance is needed when we approach those students who are at risk of not passing the bar exam.

Of course, student success or failure arises from many factors, and the choice to take the exam in the face of difficulties is the graduate’s. It’s also worth remembering that many famous people did not pass the bar exam on their first try including President Franklin D. Roosevelt, First Lady Michelle Obama, and even Supreme Court Justice Benjamin Cardozo. So, I’m going to encourage all of our students to know themselves, to work as hard as they can in the way that works best for them, and of course: wish all students success on the bar exam.

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“Thirty-One Themes of Thought” is the title I gave my fifth grade class poetry compilation.  What could this possibly have to do with best practices for law professors?

This post, my first for this blog I have long admired, I conceived as a commentary on what I call my “thematic” approach to law teaching.  In my doctrinal Family Law course as well as in my Family Law Clinic I stress recurring themes: the intense public-private tension inherent to Family Law; social change as catalyst for legal developments; storytelling as advocacy; client-centeredness; and holistic lawyering.

As I pondered this concept of “thematic teaching” my mind wandered repeatedly to that alliterative “Title” my 10-year-old brain fashioned . . . 35 years ago.  My use of the word “theme” was likely less about dedication to big-picture thinking than it was about grappling for a word other than “poem” to make my little manila-folder-booklet different from the rest in some small way.  Yet upon further reflection I find a resonance in that word choice with my current work and my teaching style.  Calling my booklet “Themes of Thought,” I believe demonstrated a constant yearning for connectivity (hence the alliteration) and a broad view (referencing the “thought” our class put into each poem)  that is part of my identity.

Taking a thematic approach to law teaching is not something I was taught–it is something that I developed organically as I grew the past 12 years as an educator.  And although I have been aware of it as my approach for years, I just a few months ago began to name it and reflect on it.  Reflection, I firmly believe, is a fundamental aspect of my professional growth as a professor and a lawyer, but also of my students’ growth.  Reflection as a tool in clinical law teaching is nothing new.  I first experienced it as a law student invited/required to submit journals routinely during my clinical year.  Borrowing that tool from my mentors was arguably the single best decision I made as a new clinical professor four years ago.  Reflection fosters self-awareness, which fosters a maximization of strengths.  Lawyers work hard, think critically and often receive little praise from clients and judges alike–not to mention opposing counsel.  Reflecting on one’s accomplishments and professional development, in addition to client interactions, shows budding lawyer (our students) that they can do this work and in fact are doing it well on many fronts.  By the same token, the opporutnity for feedback from their professor or other clinical supervisor through submission of journals is a safe and controlled space to reflect on mistakes and engage in contemplation about how to improve skills while a mentor helps them process those often uncomfortable realities.

This methodology of reflection and self-awareness is different in the traditional law school classroom setting than clinics, but it can be done.  Several colleagues have written and presented at conferences on using written reflections and other tools in non-clinical classrooms.  In my thematic teaching paradigm, I use several approaches in my Family Law lecture course, which often holds enrollment of over 50 students:

1. On Day One of class I explain the main theme of the course, which is the public-private tension mentioned above.

2. My “big picture” approach is evident from both my remarks that day in class; my syllabus which describes each class period’s theme; and the casebook, which opens with commentary on that very same public-private tension unique to Family Law.

3. I assign casebook material for Day One, comprised of several United States Supreme Court cases interpreting Due Process liberty interests.  During class I ask students to ponder why a course on Family Law suddenly looks so much like a Constitutional Law course.  Drawing their attention back to the public-private tension theme, I remind the students that Due Process liberty inquiries center around that same public-private tension.

4.  One Day One I dispense the material via lecture and PowerPoint, but clarify that I use the Socratic method from Day Two forward and call on students at random.  The Socratic method promotes self-awareness and reflection in a way no other methodology can offer, when managed successfully.  Each teacher must define success for themselves, but for me it means engaging the student about why they responded as they did, regardless of the accuracy of that response.  Even if the response is flawed in some way, I invite them to thoroughly vet it.  Then I clarify any flaws–with compassion and professional respect.

5. Volunteered answers, and questions, are welcomed in my classroom.  The questions are particularly useful for promoting reflection as well as larger themes, as they often stem from common public misconceptions about Family Law ripe for discussion.

6. Returning back to Day One for a moment, I ask the students something critcal after my introduction of the course themes and my teaching style, but before my lecture on the assigned material.  I invite them to mindfully reflect on whether this course will serve their needs as a learner.  Immediately, they as listeners are cued to reflect what they do need as learners of the law.  With what I hope is humility, I remind them that my brilliant colleague Dara Purvis also teaches Family Law and they can take the course with either prof. Students dropping my course after hearing that speech does not offend or scare me, and I stress that.  Occasionally a student walks out at that point, never to return.  That is utterly fine.

7. Finally, the final exam.  After a semester of thematic teaching and, one can assume at least a sliver of reflective learning, the students are asked at least one question on my exam about the public policy aspect of Family Law. The question is not a fact pattern.  Other parts of my exam utilize those.  But the policy question asks them to consider (and sometimes describe) an area of Family Law and what they learned about it, and opine on the efficacy of that legal framework or approach.  I like to end the semester the way we began, with reflection on the big picture, with consideration of our legal system as social underpinning.  How does the law reflect our values and social norms? Who gets to define those norms?  How much government regulation of private decision-making on personal matters is too much?

What is your signature teaching approach?  I ask my clinic students to reflect on what is their unique style of lawyering.  As their teachers I believe we are well served by reflecting on what is our unique style of teaching. The growth among our academy and our students is symbiotic.  Let us embrace that.

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Last week, the ABA Council on the Section of Legal Education and Admission to the Bar (Council) approved a comprehensive revision of the accreditation standards for law schools and moved the package of revisions on to the ABA House of Delegates for approval at its August meeting.   Before finalizing the package of revisions, the Council voted on the  Standards Review Committee ‘s   recommendation to remove  the bar on paid externships,  a recommendation strongly supported by the ABA Law Student Division.   The Council rejected that proposal and voted to maintain the separation between academic externships and paid work.   The National Law Journal reported on the Council’s action and quoted Barry Currier, the ABA’s managing director for admissions and legal education, “The council received a lot of comments and decided to not make the change. The fundamental reason is this perceived tension between the obligations of someone who is a paid employee and a student.”

At first blush, paid externships sounds positive — a  way to assist law students in reducing their debt while engaging in experiential learning.   That point has been argued by the Law Student Division.  However, as I discussed back in February,   permitting paid externships would create new problems.  One of the more likely outcomes was identified in the comment submitted by the Clinical Legal Education Association,

But those employers that are most capable of affording the full cost of a “paid externship” are also likely to accept only externship students who they deem qualified for long-term employment. Reliance on class rank would become the norm for “paid externship” placements. Traditionally, clinical courses have provided opportunities for all students to hone their abilities and prepare for practice. Students who are not at the top of the class have benefited from a chance to develop and demonstrate abilities that do not emerge in an exam. Particularly in light of the legal market and the needs of our students, CLEA is profoundly concerned about a change in the Interpretation that would benefit only students whose rankings are at the top of the class.

Moreover, those employers able to bear the full cost of a “paid externship” would more than likely “shop”among law schools. Faced with the choice of establishing a recruitment program with a school in the top tier or with a school in the third tier, CLEA believes that employers would choose the former. We suggest that revoking Interpretation 305-3 would limit the availability of certain kinds of experience to top-ranking students at top-tier schools and severely restrict students’ opportunities to participate in clinical and experiential education.

In short, CLEA strongly supports the interests of students, by seeking to assure that all students at all schools engage in high quality work, under close and careful supervision. We want more for our students than checking cites and reviewing depositions. We seek a set of standards that ensures high quality clinical legal education, in which supervisors are fully invested in teaching and mentoring students. CLEA encourages mandates that will result in equal access to all courses and for all law students. It is in the best interests of students to preserve a separate market for paid employment in which students are compensated with the fair market value of their work. Permitting the mixture of educational and employment functions will result in the diminishment of value for each, harming both students and law schools.

In its comment, the Society of American Law Teachers (SALT’) raised excellent questions about the the  likely, although unintended, consequences,

Having employers pay students also raises difficult questions about control of the assignment and crediting process. Could the employer fire a student for not performing at high enough levels?
Would a faculty supervisor be able to reassign a student if the employer failed to provide adequate onsite supervision if that would have implications for other students working for that employer, with or
without receiving academic credit? Could students refuse tasks assigned by their paying employer if those tasks were not consistent with the learning goals and the placement expectations? Would students be willing to discuss frankly with faculty supervisors any externship site supervision problems if they worried that it could mean displeasing an employer and potentially losing income. These are just
some of the troubling pedagogical issues likely to arise if students earn academic credit for paid employment.

We do need to find ways to reduce law school costs and defray student debt,   but not at the expense of providing appropriately designed and equally available academic experiences.  The Council made the right decision for legal education and for law students.

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Incorporating internship and examination requirements into university education, the regulatory organization aims to simplify and accelerate the licensing process.

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This article in the New York Times is about a different profession, but it seems familiar.

http://well.blogs.nytimes.com/2014/04/24/are-med-school-grads-prepared-to-practice-medicine/?_php=true&_type=blogs&_r=0

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Wanted to get this Special Report out to you ASAP! I am poring over it now and will report back soon!

 View the Digital Edition of this Special Report.

Experiential Learning: Practice Makes Perfect

Bruce A. Green, the Louis Stein Professor at Fordham Law School, writes: Making students ready for practice is not just a task for the formal curriculum. Law students spend much of their time in law-related pursuits outside the classroom including in extracurricular activities and part-time and summer employment. Law schools strive to help students make the most of these opportunities.

Theory Makes Successful Lawyering Possible

Jeremy Paul, dean of Northeastern University School of Law, writes that the over-emphasis on the divide between theory and practice lurking within today’s calls for law school reform obscures a far more basic reality. Grounding in “theory” is what makes successful lawyering possible in the first place.

Alternative Career Tracks Are Innovative and Necessary

Richard A. Rosenbaum, the chief executive officer of Greenberg Traurig in Manhattan, writes: Law schools, firms and seasoned attorneys must continue to work together to creatively ensure that we keep open the doors of opportunity to emerging legal talent.

Building ‘Collaborative Intelligence’ in a Challenging Legal Market

Alison Nina Bernard, the director of corporate practice at Fried, Frank, Harris, Shriver & Jacobson, and Niki Kopsidas who oversees firm-wide lateral partner hiring and integration at Blank Rome, write: In today’s highly competitive legal market, an attorney needs a high level of Collaborative Intelligence to help clients meet their strategic business goals, and law firms and other legal organizations need to foster a culture where knowledge and expertise are shared openly and effectively.

Recalculating Goals to Move Forward

Jill Backer, associate director for employer relations at Brooklyn Law School, writes: Because plans and people change, as do industries and the employment market, your goals must be able to change as well. If your goals are resilient then you can be too.

Read more: http://www.newyorklawjournal.com/id=1397823099047/Law-Schools#ixzz2zYPVtExj

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As readers to this blog know from earlier posts, the Council of the Section of Legal Education and Admissions to the Bar completed almost all of its work on comprehensive review at its meeting held on March 14-15, 2014. Importantly, the proposed changes  incorporate identification and assessment of student learning outcomes into the Standards.  In March, the Council also approved a few final matters for Notice and Comment:

• Interpretation 305-3 (Study Outside the Classroom)
• Interpretation 503-3 (Admission Test)
• Standard 505 (Granting of J.D. Degree Credit for Prior Law Study)
• Chapter 8 (Council Authority, Variances, and Amendments)
• Definitions
• Rules of Procedure

Today,  the  Standards Review Committee (which reports “up to the Council”)  posted the  agenda and supporting materials for its next meeting which will be held in St. Louis on April 25th .   The agenda begins with a Hearing on the matters out for Notice and Comment: Interpretation 305-3, Interpretation 503-3, Standard 505, and Chapter 8.   The SRC will review  the posted comments as well as  the draft final report of the proposed comprehensive changes.

The posted material also  includes a helpful summary of Council actions ( Council acts on ABA law school approval standards at March 2014 meeting) and a statement of next steps:

The complete set of revisions is expected to be reviewed by the ABA House of Delegates in August 2014 in accordance with House Rule 45.9. The House may either concur with the Council’s decisions or refer a proposed change back to the Council for further consideration. Any reference back to the Council must include a statement setting forth the reasons for the referral. A decision by the Council is subject to a maximum of two referrals back to the Council by the House. The decision by the Council following the second referral is final.

The end of this comprehensive review is in sight!

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CHECK THIS OUT:

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